I write about how technology shapes society, and vice versa. In addition to blogging for Forbes, I cover tech policy for Ars Technica. I'm an adjunct scholar at the Cato Institute and have a master's degree in computer science from Princeton. I live in Philadelphia with my wife and our two cats. There's more information about me on my website, including a comprehensive disclosure statement. Please follow me on Twitter. You can email me at contact@timothyblee.com. (I don't really like Google+ but I need to put my profile here to show up in Google search results)

Aaron Swartz and the Corrupt Practice of Plea Bargaining

Carmen Ortiz, the federal prosecutor who hounded Aaron Swartz in the months before his Friday suicide, has released a statement arguing that “this office’s conduct was appropriate in bringing and handling this case.” She says that she recognized that Swartz’s crimes were not serious, and as a result she sought “an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting.”

That’s funny because the press release her office released in 2011 says that Swartz “faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.” And she apparently didn’t think even that was enough, because last year her office piled on even more charges, for a theoretical maximum of more than 50 years in jail.

If Ortiz thought Swartz only deserved to spend 6 months in jail, why did she charge him with crimes carrying a maximum penalty of 50 years? It’s a common way of gaining leverage during plea bargaining. Had Swartz chosen to plead not guilty, the offer of six months in jail would have evaporated. Upon conviction, prosecutors likely would have sought the maximum penalty available under the law. And while the judge would have been unlikely to sentence him to the full 50 years, it’s not hard to imagine him being sentenced to 10 years.

In this hypothetical scenario, those 10 years in prison would, practically speaking, have consisted of six months for his original crime (the sentence Ortiz actually thought he deserved) plus a nine-and-a-half-year prison term for exercising his constitutional right to a trial.

Our Constitution guarantees criminal defendants a wide variety of rights, including the right to a jury of one’s peers, the right to counsel, the right to confront one’s accusers, a privilege against self-incrimination, and so forth. The Supreme Court would never allow a judge to impose a stiffer sentence on a defendant because he took the Fifth Amendment, asked to confront his accuser, or hired an attorney. But none of these rights matter if the defendant never gets to trial. And thanks to the legal fiction that plea bargaining is a voluntary negotiation between the prosecutor and defendant, our justice system effectively gives people dramatically longer sentences for exercising the right to have a trial at all.

Thanks in part to this kind of coercion, more than 90 percent of defendants waive their right to a jury trial. For the majority of defendants, then, the plea bargaining process is the justice system. As a result, prosecutors wield an immense amount of power with very little accountability.

It’s not surprising that Ortiz doesn’t see anything wrong with this system. Powerful people rarely see their own power as problematic. But the rest of us should be outraged—not just by Ortiz’s conduct, but by a system that treats thousands of defendants less famous than Swartz the same way.

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This article seems to show a lack of understanding of sentencing guidelines. As the case unfolds from its initial stages the scope of prosecution will change. As it stood on the last date of contact between Swartz, his defense attorney, and the US-A’s office a plea was offered of six months if Swartz accepted the plea agreement. Under advisement of his attorney Swartz chose not to accept, and here we are.

The laws Swartz was charged with have variant sentencing guidelines due to a basic tenet of law: We want as few unique laws as possible to cover as many unique situations as possible. When there is a case such as Swartz’s where there are many “moving parts” charges are filed for the purposes of inclusion. You would not want a specific piece of evidence excluded that helps to explain the complex nature of the crime because its inclusion was not covered under the indictment.

There’s a reason why we have lawyers. Unfortunately it seems that a large amount of the commentary on this case could have been made both more factual and more compelling if authors like Timothy Lee consulted the law and its practitioners over the cries of vox populi. This is a case that is way, way too complex and too important to have been left to misunderstandings and misinterpretations.

It sounds like you have a lot of faith in the system Chuck CoolGuy. With your depth of understanding and knowledge of the system, can you tell us all why the US has 5% of the world’s population and 25% of the world’s prison population? We have the highest incarceration rate of any nation, nearly 10 times the rate of other industrialized nations.

Between mandatory minimum sentencing guidelines, a failed war or drugs, inappropriate handling of mental illness and poverty that occurs due to incarceration which leads to high rates of recidivism and sociopolitical pressures to eliminate ‘dangerous elements’ (which usually means the poor and minorities) to create ‘safe neighborhoods’?

I don’t think that prosecutorial overreach in the case of millionaires mass duplicating files affects the crime rate in a statistically significant way.

this is well outside my expertise, but this PBS documentary suggests that ‘prosecutorial overreach’ is S.O.P for the DOJ. This certainly was overreach (you’ve lost contact with reality if you think otherwise), but it is unclear to me if this is simply how we allow the DOJ to behave (very badly), or was Ortiz’ office worse than others:

While I enjoy Frontline, please explain how, when the attorney for the defense and the prosecution’s version of events show the offer of a plea, go through sentencing guidelines, and mesh on suggested sentencing. Ortiz’s office operated within the very definition of a plea: they requested Swartz plead guilty to offenses in return for leniency in sentencing.

The fact of the matter is that, per the definitions of the crimes listed (even definitions and crimes that existed long before the Computer Fraud and Abuse Act) we’re looking at Swartz serving time unless he is able to convince the judge to take into account extenuating circumstances. His defense felt he would seek probation. The prosecution? Never seeking thirty years, and from newly released documents not even seeking a year.

Again, explain how this case, this individual has anything to do with prosecutorial misconduct or overreach. Posting a link is not sufficient argumentation Tom.

Since the prosecutors were stacking on additional charges in the Fall of 2012, the claim of ‘not overreach’ seems to me invalid. They had all the charges they needed for a “requested Swartz plead [of] guilty to offenses in return for leniency in sentencing.” The facts do seem to fly in the face of your arguments. I do appreciate you perspective and do feel that some ‘punishment’ was warranted. Most disturbing is the manner in which the plea bargaining in America has distorted ‘justice.’ A non-lawyer looking at the issues brought up on Frontline, comes away with a realization of the distortion. For those in LAW, the distorted rationale seems to just be accepted as the norm. Many of us could find ourselves in similar circumstances with the DOJ. This is especially of concern when you consider the quotes below (I’m not in the legal biz, but apparently these folks are):

Albert Alschuler is a professor of law and criminology at the University of Chicago. In this interview, he offers an overview of the moral, judicial and constitutional implications of relying on plea bargains to deal with the vast majority of felony cases, and he suggests three ways to help fix the system. “I think most people in the legal profession think plea bargaining is just fine,” he tells FRONTLINE. “It’s in the interest of prosecutors and defense lawyers and judges, and they’ve devised elaborate rationales for this process. I don’t think any of the rationales make sense, and I think that makes me a maverick.”

I’ve always been amused by our complex legal system: “Criminal defense lawyers are fond of claiming that the average American commits two or three punishable crimes every day.”

and

“There is no one in the United States over the age of 18 who cannot be indicted for some federal crime,” said John Baker, a retired Louisiana State University law professor… “That is not an exaggeration.”

Chuck Coolguy, given the labyrinthine volume of federal laws and regulations carrying penal sanctions, I marvel at your bizarre suggestion that federal law reflects the principle of parsimony. It obviously does not. It is elephantine.

Your second suggestion, that we need lawyers to make any sense at all of this mess, contradicts your first suggestion anyway. If the law is that complex, how can anyone possibly conform their behavior to it? They cannot. And if they cannot, it means we really do not have law at all.

It is unbelievable, after that fact, that this prosecutor who we have entrusted with so much power, could be so dishonest.

This goes a long way to explaining why the United States has 5% of the world’s population, and 25% of the world’s prison population. We have nearly 10 times the incarceration rates of other industrialized nations. That is also 10 times the cost. The criminal system in the US has become not only drunk on power, but on the money flowing through the system.

Ok. We’ve heard that. Now let us expand on the story. What do your comments about prison have to do with this specific case? What causes this case to be one that didn’t necessitate prosecution? How does a case where six months was being sought says “drunk on power”?

What part of the US Attorney’s prosecution of Aaron Swartz was incorrect? We know the facts of the case and they are readily available at dozens of sources online.

You keep saying that the prosecutor was “only seeking six months”. But that is not true. They were OFFERING six months only in exchange for a guilty plea. If Swartz had gone to trial, the prosecutor would have gone after much more than that. That is what this entire article is about. Defendants are offered a reasonable sentence (only if they’re indeed guilty) in exchange for giving up all their rights. But if they actually intend on making the government prove their case, they almost always have the book thrown at them. That is certainly not what the framers had in mind when the 5th and 6th amendments were crafted. It makes it so that defendants are absolutely coerced into pleading guilty, regardless of their innocence or guilt, for fearing of incurring a long prison sentence if they lose at trial. You seem to be deliberately obtuse on that point.